Monday, June 5, 2017

There's No Private Public Defender Doctrine

Save Our Heritage Org. v. City of San Diego, No. D070006 (D4d1 Apr. 27, 2017)When an advocacy organization successfully challenges government action, it often is entitled a fee award under Code of Civil Procedure § 1021.5, which codifies California’s private attorney general doctrine. But in this case—a permitting dispute over a revitalization project in Balboa Park—the organization lost. The proponent of the permit—a committee created to shepherd the design and review process—had intervened at the trial court level and was ultimately successful in getting the approval on appeal. The question is: Can the proponent get a fee award of its own under § 1021.5?

The answer is yet, but.

Yes, a project proponent can get an award, provided the statutory elements of § 1021.5 are otherwise satisfied. The statute requires a significant public benefit, a litigation shouldered by a private party needed to undertake public enforcement, and the inability to pay a fee award out of a monetary recovery. That’s possible here, since the Committee was working for a park revitalization plan for public benefit, the City bailed on the appeal that the Committee eventually won, and there’s no monetary recovery.

But, although the text of § 1021.5 doesn’t say so, courts won’t award fees under § 1021.5 against an entity that hasn’t done anything to harm the public interest. Which in general means that fees won’t be awarded against a party that hasn’t been accused of violating some law for which private enforcement was required. In the underlying litigation, Advocacy Organization was accusing the City of violating the law. That Advocacy Organization eventually lost that litigation in the appeal taken by the Committee after it intervened doesn’t mean that Advocacy Organization was harming the public interest. So even if the Committee met the textual requirements of § 1021.5, it couldn’t get a fee award against Advocacy Organization.